303 F.

2d 134

Joseph P. HADDAD, Administator, Plaintiff, Appellant,

v.
BORDER EXPRESS, INC., Defendant, Appellee.
No. 5909.

United States Court of Appeals First Circuit.

May 22, 1962.

Joseph J. Hurley, Boston, Mass., with whom George M. Tull, Quincy,

Mass., was on the brief, for appellant.
George P. Lordan, Cambridge, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH,
Circuit judges.
ALDRICH, Circuit Judge.

This appeal from the Clerk's taxation of costs following our affirmance on the
merits, 1 Cir., 300 F.2d 885, touches an important subject which we understand
is now receiving special attention from the Advisory Committee on Appellate
Rules. We are concerned here, however, not with reform, but with application
of the existing rules.

In August 1959 a collision occurred between a truck operated by defendantappellee and a car operated by a Mrs. Haddad. Mrs. Haddad was hospitalized.
Four days later she was delivered of a seven-months infant, who lived for one
day. Suits were brought by Mrs. Haddad for personal injuries, by her husband
for consequential damages, and by the administrator of the deceased child for
wrongful death. The principal issues were negligence, contributory negligence,
and damages. With respect to the infant it was undisputed that death was due to
the premature birth, but there was an issue whether this, in turn, was due to the
accident. The cases were tried together, the same counsel representing all
plaintiffs. In each instance the jury found for the defendant. Motions for new
trial were denied after hearing. The present troubles then began. All three
plaintiffs filed notices of appeal, and obtained from the district court leave to

proceed in forma pauperis. Their statement of points included allegations that

the verdicts were against the weight of the evidence and that the court erred in
refusing to grant a new trial. The accompanying statement of what appellants
proposed to reproduce in their record appendix designated simply the
pleadings, the testimony of a Dr. Tremblay, the charge to the jury, and the
'charge at the hearing of the motion for new trial.' This was a very poor
performance. How such a record could present any question in Mr. and Mrs.
Haddad's individual cases we cannot imagine.
3

Counsel evidently recognized his error On the due date there were filed
'Appellant's Record Appendix' and brief simply in the administrator's case.
Nothing was filed in the other two. The brief stated the sole questions involved
to be whether appellee's physician who had testified that the premature birth
was not causally connected was qualified, and whether the court should have
granted a new trial when it was discovered after the verdict that this physician
had testified upon a superseded edition of a medical treatise without disclosure
of the fact. The appendix contained part of the testimony of Dr. Tremblay, and
added to the originally proposed record part of the testimony of a Dr. Elia and
all of the testimony of a Dr. Maloof. The appendix contained only one page of
the charge and only part of the proceedings on the motion for new trial.
Thereafter after appellee filed its brief and an extensive record appendix, the
taxing of which now concerns us.

The first question is the propriety of taxing costs at all against Mr. and Mrs.
Haddad individually. It is true that they joined in the notice of appeal.
However, their appeals were never perfected. If, after such failure, appellee had
any question as to the need of a record appendix with reference to them, it
should have taken some step other than proceeding to print. We cannot believe
it had any question. This is shown by the fact that its brief accompanying its
record appendix starts out, 'This is one of three actions of tort for negligence
arising out of a collision * * * The plaintiff Joseph P. Haddad, as administrator
of David Haddad, appeals from the judgment below * * *' Appellee then states
the two grounds recited in the administrator's brief, which clearly relate only to
the administrator's case. No mention is made of any appeal by Mr. and Mrs.
Haddad. We see no basis for charging them with printing costs.

We turn to the administrator's appeal. The first part of appellee's appendix

consists of 77 pages, constitution the full testimony of Drs. Tremblay and Elia.
Specific objections have been filed to taxing this as costs, based on three
general grounds. These are that much of the testimony is a deplication of what
appellant had already furnished; that most of the rest of the testimony relates to
the immaterial hospital course of Mrs. Haddad and to her disability subsequent

to the death of the infant; and that the remainder of the 77 pages consists of
colloquies between court and counsel and conferences at the bench. By
applying a ruler we find that a total of 42 pages constitutes duplication of what
had already been reproduced by appellant. Of the 35 pages of new matter, 17
were devoted exclusively to Mrs. Haddad's personal matters. Three or more
constituted clearly futile attempts by appellee to show that the child would not
have come to full term in any event. Possibly, in toto, there was one page of
evidnece conceivable relevant to the administrator's appeal, although we must
note even here that none of it was favorable to appellee. The remainder,
occupying nearly 14 pages, consists of colloquies leading to the withdrawal or
rephrasing of questions, to the order of testimony, to the availability of records
and other housekeeping details, no part of which could be considered of any
possible relevance. In one instance appellee printed four consecutive pages
relating to appellant's objections to an exhibit which were finally overruled and
withdrawn. Ranking with this in importance were various discussions dealing
with engagements of the expert witnesses and of court and counsel. Sometimes
such irrelevancies may creep in. But it is a wasts of more than printer's ink to
duplicate testimony for the special purpose of inserting them.
6

Our Rule 24, 28 U.S.C.A. provides that the appellant or petitioner shall print as
an appendix to his brief, in addition to the matters specifically enumerated, '* *
* such other parts of the record, material to the questions presented, as * * *
(he) deems it essential for the judges of the court to read in order to decide
those questions.' And the rule further provides that the appellee or respondent '*
* * shall print as an appendix to his brief * * * such parts of the record as he
deems it essential for the judges of the court to read to decide the questions
presented and as have not been printed in the appendix to the brief of the
appellant or petitioner.' On its face these provisions might seem to imply that an
appellant's failure to print enough in his record appendix to support his
contentions casts the burden on the appellee to supplement the appellant's
record appendix. This, however, is not the meaning of the rule. As consistently
interpreted by this court the rule means that if an appellant fails to print enough
to sustain his contention, he abides the consequences. The appellee's duty is not
to incur the expense at the risk of recoupment by way of costs of printing a
record appendix for the appellant, but only to print matter in refutation of the
appellant's contentions or matter supplying another basis for the ruling, order or
judgment of the court below. It is upon appellant that the burden falls of
preparing a prima facie complete record.

Thus, if a defendant-appellant claims, for example, that the evidnece did not
warrant a finding for the plaintiff, he must (a) print all of the evidence in the
case on liability, or (b) obtain, and print, a stipulation from appellee that

appellant's appendix is adequate, or (c) file an agreed joint appendix with

appellee. Feener Business Schools, Inc. v. School of Speedwriting, Inc., 1 Cir.,
1956, 234 F.2d 1, cert. den. 352 U.S. 942, 77 S.Ct. 264, 1 L.Ed.2d 238.
Naturally, the latter alternatives are to the benefit of everyone, including the
court. If, on the other hand, appellant's point is a narrower one, merely the
evidence relevant to that question need be printed. If appellee believes that
matters essential to his presentation have been omitted he may supply them. If
the omissions are flagrant and extensive, in an exceptional case he may have
some other remedy. Cf. Walters v. Shari Music Publishing Corp., 2 Cir., 1962,
298 F.2d 206; Morrison v. Texas Company, 7 Cir. R. 33(4); United
Construction prints manifestly too much, he must run the risk of not recovering
the costs. 1 Cir. R. 33(4); United Construction Workers v. Haislip Baking Co.,
4 Cir., 1955, 223 F.2d 872, 879, cert. den. 350 U.S. 847, 76 S.Ct. 87, 100 L.Ed.
754; Jissouri-Kansas Pipe Line Co. v. United States, 3 Cir., 1939, 108 F.2d 614,
cert. den. Missouri-Kansas Pipe Line Co. v. Columbia Gas & Electric Corp.,
309 U.S. 687, 60 S.Ct. 887, 84 L.Ed. 1030.
8

We do not mean to suggest that taxation of costs presents a precise

mathematical question. Very considerable leeway must be allowed for the
parties' judgment in deciding what to print. Gray Tool Co. v. Humble Oil &
Refining Co., 5 Cir., 1951, 190 F.2d 779. And, in particular, we do not mean
that if an appellant prints a record with many material omissions appellee need
print only the filler, requiring us constantly to superimpose the two in order to
obtain a readable whole. An appellant who furnishes a substantially deficient
record may well have to pay for duplication. This is not the case at bar. It was
not appellant's record that offended the rule, but appellee's. In corroboration of
our description of appellee's additions, we find in its entire brief, to which its
record was supposedly an appendix, no reference to a word of its 77 pages of
testimony not already appearing in appellant's reproduction. This seems a plain
indication of what appellee considered 'essential.' The next 31 pages of its
appendix consists of the charge, 30 pages of which are new. Appellee's brief
refers to two, consecutive, paragraphs.

We agree that it was within appellee's discretion to print the entire proceedings
(14 pages) on the motion for new trial. We agree, too, that its supplemental
appendix, while perhaps not properly a record, was, under the special
circumstances of the case, proper as a supplemental brief. The rest of its record
was clearly unnecessary.

10

Appellee's printing costs, as against the administrator, may cover its brief, 15
pages of its record appendix, and its so-called supplemental appendix. No costs
against the individual plaintiffs.

11

WOODBURY, Chief Judge, with whom HARTIGAN, Circuit Judge, joins

(concurring).

12

We do not disagree with what Judge Aldrich writes. We would like to point out,
however, that our clerk taxed costs in this case in accordance with the court's
mandate and our Rule 33(2). No fault lies with him. It lies basically with
counsel for the appellant in failing to complain in his brief of his opponent's
record appendix, and perhaps to some extent with the court for not being more
alert to the situation and directing taxation of costs accordingly. This is not to
suggest that Judge Aldrich should shoulder the blame. Decisions of the court
are not solos but concertos. We should all be on the watch for excessive
unnecessary printing. However, while we might have let costs stand as taxed
for failure of appellant's counsel to complain promptly instead of waiting until
costs had been taxed against him, we suppose it is not even now too late in this
exceptional case for the court to take corrective action.